Bill Renews Debate on Merging Highest Two Courts

State Rep. Richard Peña Raymond has filed a bill to abolish the Court of Criminal Appeals and bring all of its related cases under the Texas Supreme Court. He's triggering a debate that goes all the way back to Reconstruction.

by Maurice Chammah
Dec. 13, 2012
6 AM

Frank Swift

A proposal for the upcoming legislative session is resuscitating a debate that goes back to the writing of the Texas Constitution in 1876.

Texas and Oklahoma are the only two states with their highest courts divided between civil and criminal jurisdictions, though others have considered it as a means to deal with large case backlogs. Last year, lawmakers in Florida considered splitting the state's Supreme Court, particularly to deal with a growing list of death penalty appeals, but a political battle killed the proposal.

Raymond’s bill and joint resolution, pre-filed last month, would allow the Texas Supreme Court to decide which criminal cases to review but would require that it look at all death penalty appeals.

He says that the change should be a no-brainer, because 48 other states and the federal court system have a single highest court. "The model is there for most of the country," he said. "The more people talk about it the more they will agree."

The Texas system of dividing the highest courts into civil and criminal areas goes back to the Reconstruction era. The Civil War created a large backlog of cases, says Bill Pugsley, the director of the Texas Supreme Court Historical Society. The Texas Constitution of 1876 dealt with the backlog by creating a three-judge Court of Appeals to hear criminal cases and a handful of civil cases.

The division was “confusing,” Pugsley said, and in 1892 the Legislature gave exclusive jurisdiction of civil matters to the Texas Supreme Court and of criminal matters to a Court of Criminal Appeals. The latter court grew to five judges in 1966 and to its current number, nine, in 1978.

Over the last three decades, this system has been constantly debated. The Constitutional Convention of 1974 proposed an amendment to merge the courts, but Texans voted it down in 1975. The proposed merger "was supposed to prevent conflicts between the two courts' opinions," said William Willis, chief administrator of the Texas Supreme Court from 1978 until 2005. But, he added, those conflicts of opinion "have been very few and unimportant."

Lawmakers had hoped that a single court would save money by decreasing the size of the support staff, but Willis said that because the number of cases would not shrink, a single unified court would simply need to employ roughly the same size of staff as the currently divided courts. "I never believed it was really workable," he said.

In 1987, then-Gov. Bill Clements publicly announced support for merging the courts, leading various judges and lawmakers to say the caseload for a single court would be too great. "There's only 24 hours in a day, and we deserve some sleep like everyone else," Supreme Court Justice James P. Wallace said at the time.

Similar bills proposing the merger of courts, each with a slightly different plan, have died in committee in 1993, 1999, 2003 and 2011. But shortly after the last one, in a dissent from a Texas Supreme Court decision regarding contempt of court, which the court heard after the Court of Criminal Appeals declined to look at it, Justice Don Willett blasted the divided court system.

“Dr Pepper and the ‘little creamery’ in Brenham; deep-fried anything at the State Fair; a spirit of daring and rugged independence — the sources of Lone Star pride are innumerable. Unfortunately, the juris-imprudent design of the Texas judiciary does not make the list,” he wrote. “The State’s entire Rube Goldberg-designed judicial ‘system’ is beyond piecemeal repair; it should be scrapped and rebuilt top-to-bottom.” He titled one section of the dissent “We Have Arrived Here Through Historical Happenstance.”

“I think in the bigger picture, the reasons we have two separate courts in the first place have become an anachronism and it's really kind of pointless now,” said Scott Henson, who writes the popular criminal justice blog Grits for Breakfast. Over the last several decades, he said, the state’s weaker political party has supported the idea of merging the courts, because the division gives the party in power more statewide seats during each election.

To address that specific issue, though, Sen. Dan Patrick, R-Houston, has pre-filed a bill eliminating straight-ticket voting in judicial races, which critics say tends to weigh the courts toward whichever party is in power. “Twenty years ago the Republicans probably wanted the courts merged,” Henson said. "The fact of this pendulum swing should be the reason for merging them. It shouldn't be political, but it's become that way."

There are also practical issues in implementing such a bill. Lisa Kaufman, spokeswoman for the Texas Civil Justice League, a legal reform group, said that though her organization does not have a position on the current bill, the biggest difficulty would be managing the caseload created by merging the courts. “The Court of Criminal Appeals’ docket is so big,” she said, “that if we put them together, the sheer magnitude of the cases would swallow them.”

A 2007 report by Texans for Lawsuit Reform, a tort reform organization, recommended that the Legislature study the possibility of merging the courts, but refused to come down on one side of the debate. “Because neither court is truly supreme, Texas’s high courts have no ability to resolve the conflicts that arise when they reach different conclusions on a point of law,” they wrote. “On the other hand, having two high courts allows each court to bring specialized knowledge to different types of cases for the benefit of litigants.”

Robert Schuwerk, a professor at the University of Houston Law Center who studies legal ethics in both civil and criminal areas, agrees that there are a multitude of pros and cons. On the one hand, he mentioned the efficiency of a single administration, the possibility of cost savings with fewer judges, and the possibility of a more diverse set of judges overseeing both civil and criminal matters.

But the flip side to diversity, Schuwerk said, is that “there would be a decline in the expertise with which criminal cases are handled.” In addition, he said, “criminal law is a specialty that is of little use and little interest to most high-quality civil-practice lawyers,” and “having to hear a great many criminal cases could deter otherwise highly qualified civil background lawyers from running for the new unified court.”

But Henson argues that lawyers with a civil background would bring a fresh approach to criminal cases. They would approach forensic science debates with the standards of civil law, which he says are more strict.

Much of the discussion is preliminary, say a variety of legal experts, because the previous bills have never been vigorously debated. Raymond hopes to change that during the upcoming session. He estimated that 90 percent of the general public already thinks there is a single-highest court in Texas. "Eventually, I don't have any doubt we'll merge the courts," he said. "This is one where Texas has fallen behind."

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